Wednesday, October 1

Can settlement orientated mediators like me cherry pick from transformative process?

Like many commercial mediators I fall in and out of love with transformative mediation all the time.

To its credit, the transformative mediation community has held the line forever on the question whether problem solving/settlement orientated mediators like me can cherry pick from their process.

I know I can; they think I can’t.

So, of the 10 hallmarks of transformative practice I have learnt that these two are the most useful in my commercial mediation practice:

1. Keeping the mindset of the present – I have learnt to stay in the room but it took me many years. I can still be relaxed as it goes pear shaped at 4.00pm when I know there are plane tickets in pockets around the table for 6.00pm.

It is about adopting of a “here and now” focus and staying away from the big picture by attending to the individual comments and contributions the parties are making, even if they appear to be unhelpful in progressing towards settlement.

2. Avoiding a problem focused approach – this follows from (1) - easy to say but hard to do. But essentially it is about avoiding focusing exclusively on tangible issues and not feeling the need to tidy up all comments and contributions into one solvable problem. I guess, that is about being comfortable with ambiguity – again that takes some time to accomplish, especially if you're a lawyer.

Now, just to be clear – if we are in a litigated commercial case, in my world a problem solving approach is called for at some stage. For me it's down back after first valuing the case by facilitating the debate and dialogue - then and only then looking for movement to best numbers and closing the inevitable gap.

A summary of Folger's and Bush's ten hallmarks is:

>"The opening statement says it all": Describing the mediator's role and objectives in terms based on empowerment and recognition.
>"It's ultimately the parties' choice": Leaving responsibility for outcomes with the parties.
>"The parties know best": Consciously refusing to be judgmental about the parties' views and decisions.
>"The parties have what it takes": Taking an optimistic view of parties' competence and motives.
>"There are facts in the feelings": Allowing and being responsive to parties' expression of emotions.
>"Clarity emerges from confusion": Allowing for and exploring parties' uncertainty."
>"The action is 'in the room'": Remaining focused on the here and now of the conflict interaction.
>"Discussing the past has value to the present": Being responsive to parties' statements about past events.
>"Conflict can be a long term affair": Viewing an intervention as one point in a larger sequence of conflict interaction.
>"Small steps count": Feeling a sense of success when empowerment and recognition occur, even in small degrees.

For more on this see: Can Transformative Mediation work in commercial litigation? - a conversation with Joseph Folger and Robert Baruch Bush


Chris Annunziata said...

Like you, I don't see how any of these things are mutually exclusive with "commercial mediation". If it works, it works. At some point in the last year, I've probably incorporated most of those "hallmarks" into a mediation session. Frankly, I find it ironic that a field that promotes communication, dialogue and inclusion can be so fragmented and territorial.

Brother Mat said...

I agree with Geoff and Chris-- from the outset of my dispute resolution education the buzz phrase "tools in the toolbelt" have been frequently used. It almost seems that Folger and Bush want to hold some Kantian-esque position that their transformative method should not be used as a means to an end, only the end itself. But that could just be me.